Tens of thousands of rape kits go untested across USA

Items used to collect evidence is displayed in an exam room at University Hospital. A grant from Verizon Wireless will help the hospital provide more complete forensic examination for domestic abuse and sexual assault patients. August 28, 2014(Photo: Michael Clevenger/The Courier-Jo)

After 18 years without justice, Joanie Scheske believed the man who raped her would never be caught.

Then, the St. Louis police called in 2009. Evidence in a separate, eight-year old sexual assault matched her attackers’ DNA.

Rapist Mark Frisella, whose attack was so brutal Scheske still suffers from epilepsy, is serving 19 years in prison.

“I had a really difficult time wrapping my head around why that rape kit was never tested,” Scheske said.

A USA TODAY Media Network investigation has found similar evidence in tens of thousands of rape kits neglected by police around the country.

Records obtained from more than 1,000 police departments identified at least 70,000 sexual assault kits containing evidence from reported rapes and other sexual offenses that were never sent to labs for testing. Despite its scope, the agency-by-agency count covers a fraction of the nation’s 18,000 police departments, suggesting the number of abandoned rape kits reaches into the hundreds of thousands.

A law in Ohio took effect in March that requires the testing of all past kits within a year.

The investigation found widespread inconsistency in how police handle rape evidence and failures at all levels of government to solve the problem. Records obtained from requests in all 50 states revealed:The kits contain forensic evidence collected from survivors in a painstaking and invasive process that can last four to six hours. Testing can yield DNA evidence that helps identify suspects, bolster prosecutions and in some cases exonerate the wrongly accused.

• Most states and most police agencies have no written guidelines for processing sex-crime evidence. Decisions often are left to the discretion of investigating officers. Some agencies test every rape kit. Others send as few as two in 10 to crime labs.

• Many thousands of untested kits are accumulating almost unnoticed at rural and smaller city departments. Hundreds of rape kits remain untested in places like Visalia, Calif., St. Cloud, Minn., and Green Bay, Wis.

• Although uploading offenders’ information into DNA databases is proven to identify serial predators who move across jurisdictions, police often treat rape kits as if the evidence is relevant to a single assault.

• At least 50 law enforcement agencies — from Montgomery, Ala., to Reno, Nev. — have never counted untested rape kits in their evidence rooms. Most states haven’t undertaken an inventory.

• The U.S. Department of Justice is failing to comply with a 2013 law meant to get more evidence tested and set standards for processing rape kits.

For rape survivors like Scheske, the accumulation of untested evidence is more than abstract statistics.

“Every single one of those rape kits is a person, and family and friends,” she said. “It’s like a baby’s mobile: You touch one piece and it moves all the others. It’s not just one person. Everyone that their sphere of influence touches is affected by what happens to a victim.”

Debbie Smith of Williamsburg, Va., is one of thousands whose cases were solved by DNA analysis. After a masked man invaded her home in 1989 and raped her — threatening to come back and kill her if she told anyone — she lived in constant fear for more than six years.

Smith remembers the day she was told a DNA match identified her attacker. He was already behind bars in Maryland for another crime. “It was the first time in those 6½ years that I took a deliberate breath. I wanted to breathe. I wanted to live.”

The inconsistent analysis of rape kits persists even as comprehensive testing in some cities — including New York, Cleveland and Detroit — has demonstrated the power of the previously unused evidence to identify unknown assailants, confirm the accounts of sexual assault survivors, and exonerate wrongly accused suspects.

The results showed the discretion investigating officers have over whether to test rape kits has often been misused, said Sarah Haacke Byrd, managing director of the Joyful Heart Foundation, a group pushing for testing of all kits tied to a reported sexual assault.

“Time and time again, we have seen that law enforcement frequently disbelieves victims when they’re seeking help from law enforcement,” she said. Mandatory testing “takes discretion out of the hands of law enforcement.”

It took more than a decade for Michael J. Brown to face justice for the 1993 rape of a school-aged girl at a New York City apartment complex.

On Aug. 6, 1993, Brown followed the girl inside a Queens apartment building. He placed his hand over her mouth and abducted her, taking her to the rooftop, where he raped her and knocked her unconscious with a brick, according to court records.

The girl was taken to a local hospital, where she was interviewed by police and a rape kit was prepared. Then, for nine years, that evidence sat in a freezer among a trove of 16,000 untested rape kits held by the New York City Police Department.

In prior decades, the evidence had little value unless new leads emerged. But DNA technology advanced and state and federal governments built offender databases. Police and policymakers saw value in analyzing the evidence.

In the late 1990s, NYPD spent $12 million to send every kit to a private lab for analysis. About 2,000 matched DNA in offender databases — “cold hits” as police call them. One of the matches: Michael Brown.

His DNA had been entered into the FBI’s Combined DNA Index System (CODIS) database after an unrelated crime in Maryland. The DNA match led to his indictment in 2003 for the New York girl’s rape. He was convicted in 2005.

Other cities and states followed New York’s example and now test all rape kits. New laws and changing attitudes have led to CODIS matches resulting in thousands of new investigations and hundreds of indictments — many involving serial offenders tied to sex crimes in different parts of the country.

Testing by Cleveland-area prosecutors linked more than 200 alleged serial rapists to about 600 assaults. Statewide, Ohio Attorney General Mike DeWine’s effort to collect and test rape kits has resulted in at least 2,285 CODIS hits so far. In addition, the state passed a law that requires Ohio law enforcement to submit previously untested sexual assault kits associated with a past crime to a crime laboratory within one year. The law also requires all newly collected rape kits be submitted to a crime lab within 30 days it has been determined that a crime was committed.

“I applaud the work of the legislature to give sexual assault survivors and law enforcement more opportunities to pursue justice,” DeWine said in a statement.

Still, many police agencies haven’t changed policies.

Forty-four states have no law stipulating when police should test rape kits, and 34 states haven’t conducted a statewide inventory.

“We need to have a full accounting for the state of what’s left, what hasn’t been tested, why it hasn’t been tested and just clear it up,” said New York State Assembly member Linda Rosenthal, a Democrat, who has introduced legislation requiring an inventory. The bill has yet to make it out of committee. The state Department of Criminal Justice Services started a survey of 213 police agencies after questioning from USA TODAY.

Interviews with law enforcement officials, and a review of case records, reveal rape kit testing is often arbitrary and inconsistent between agencies and even within agencies.

In Jackson, Tenn., records show contradictory reasons why rape kits were not tested. In some cases, the Jackson Police Department did not test evidence because the suspect’s identity was already known. In others, records show police decided not to test kits because there was “no known suspect,” even though testing the kits could help identify a suspect.

Law enforcement officials said the most common reason kits are not tested is there is not a prosecutable case, usually due to a lack of cooperation from victims. Lack of cooperation from a victim is not a valid reason to jettison forensic evidence, said Mai Fernandez, executive director of the National Crime Victims Center in Washington. Some survivors may fear retaliation if they press charges.

“The victim might not decide that they want to go forward with the case, but they might decide later on that they do,” Fernandez said. “Or, if there’s enough circumstantial evidence, including the kit, a jurisdiction could decide to go forward without the victim.”

Many law enforcement officials are adamant in their defense of leaving some kits untested.

At about $1,000 per kit, officials said submitting a rape kit for testing unnecessarily could divert resources from other needs or delay testing of evidence in cases where the need is more urgent.

“The kit itself isn’t always the best science or the best evidence to a case,” said Sgt. Trent Crump, spokesman for the Phoenix Police Department, which has accumulated 1,782 untested rape kits since 2000. He said the agency decides using an “evidence-based testing procedure.”

A growing number of advocates are pushing universal testing.

“I think that in cities that have started testing all of their backlog, they’re finding enough patterns of serial rapists for the information to be really valuable in current cases as well as the ones that have been sitting on shelves for years,” said Scott Berkowitz, president of the Rape, Abuse and Incest National Network.

Over the past decade, Congress appropriated about $1.2 billion to cut the nation’s backlog of DNA testing. In other terms: enough to test 1 million rape kits.

In 2013, Congress passed the Sexual Assault Forensic Evidence Reporting Act, requiring three-quarters of federal funding for sexual assault kits be used for testing or taking inventory. The law set up grants to help local police pay for counting and testing. No grants have been awarded. A Justice Department steering committee met only once, in March 2014.

Sen. John Cornyn, R-Texas, who authored the law, said that’s “completely unconscionable.”

With federal action stalled, changes in how rape evidence is treated is falling to state and local officials. As more cold hits emerge, some law enforcement leaders have started to advocate for change.

“They’ve had success stories with testing these kits,” said Col. Elmer Setting, who leads the New Castle Police Department in Delaware and supports mandatory testing. “It’s amazing how, (for) many of these sexual predators, we have their DNA and we never tested the kit. It doesn’t make any sense.”